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Synopsis

The Bombay High Court on Monday remarked that the Election Commission of India's stand, stating that it could not hold by-poll elections for the Lok Sabha seat because the commission is busy with other elections and preparatory activities for the 2024 Lok Sabha elections, was 'hardly tenable.'

The division bench of the Bombay High Court, comprising Justice GS Patel and Justice Kamal Khata was heairing a petition filed by a Pune resident seeking to direct the election commission to hold the by-poll elections, as six months had already lapsed for the election commission to fill the vacancy as prescribed under the law.

The division bench of the high court remarked that it was understandable if it was physically impossible for the commission to hold elections in places like Manipur.

“We understand if they (Election Commission) say they cannot hold elections in a place like Manipur where there is physical unrest,” Justice Patel said.

The remarks were made by the bench after Advocate Pradeep Rajagopal, representing the ECI, submitted that it would not be able to hold by-poll elections due to the preparatory activities for the 2024 Lok Sabha elections.

Advocate Kushal Mor, appearing for the petitioner, argued that by-elections were conducted in other constituencies after the vacancy arose in Pune.

“The by-elections in the other constituencies were held after the vacancy arose in the Pune constituency,” Mor said.

The bench then asked Mor to submit the list on affidavit indicating the by-polls that were conducted by ECI after the vacancy was created in the Pune seat.

Last week, the bench had sought a response from the ECI for not conducting the by-poll elections.

The vacancy was created in the Pune Constituency due to the death of MP Girish Bapat.

Sughosh Joshi in his petition filed through Advocate Dayaar Singla and Shraddha Swarup claimed that, as per Section 151A of the Representation of Peoples Act 1951, the vacancy should be filled through a by-poll within six months, and therefore, the same should have been held by September 28, 2023.

The petition underscored that keeping the constituency unrepresented for over a year due to the Election Commission not holding a by-election is manifestly arbitrary and grossly disproportionate.

“..the said Constituency being kept unrepresented for over a year due to the Respondent No 1 not holding a bye- election is manifestly arbitrary and grossly disproportionate and excessive besides being grossly illegal and unconstitutional being hit by Article 14 and 21 of the Constitution,” the plea reads.

The bench will now hear the petition day after tomorrow. 

Case title: Sughosh Joshi vs ECI